Makeig v Tucun

Case [2009] NSWDC 42
CITATION: Makeig v Tucun [2009] NSWDC 42
HEARING DATE(S): 13/10/08, 14/10/08, 15/10/08, 16/2/09, 17/2/09, 9/3/09, 10/3/09, 12/3/09, 13/3/09
 
JUDGMENT DATE: 
13 March 2009
JURISDICTION: Civil
JUDGMENT OF: Cogswell SC DCJ
DECISION: Tender of evidence rejected.
CATCHWORDS: EVIDENCE-Documentary evidence-Tendency-Was notice reasonable in circumstances?-Credibility only-Significant probative value-Discretion to reject-Hearsay
LEGISLATION CITED: Evidence Act 1995 s59, s62. s64, s94, s97, s106, s135
CASES CITED: Jacara Pty Ltd v The Perpetual Trustees WA Ltd (2000) 106 FCR 51
PARTIES: Peter Makeig
Tugomir Tucun
Stephanie Maureen Tucun
FILE NUMBER(S): 5357/07
COUNSEL: Mr T Somerville
Mr F Kalyk

JUDGMENT

1 Mr Kalyk, who appears for the defendants in this case, tendered two documents. Both were objected to by Mr Somerville, who appears for the plaintiff. This is a ruling on the admissibility of the documents tendered by Mr Kalyk.

2 The first document I marked MFI 12. That document comprises a number of pages of transcript. The transcript, it is agreed, is of proceedings in the Supreme Court. Those proceedings were conducted last month and earlier this month. The plaintiff in those proceedings was the plaintiff in these proceedings, Mr Peter Makeig. Another part of MFI 12 was a document conveniently setting out the page numbers of the pages which Mr Kalyk was tendering and the basis upon which he tendered those respective pages.

3 The second document I marked MFI 15. That also comprises two documents. One is a tax invoice dated 25 July 2005 from Mr Makeig to a person named Mr Van de Scheur. That concerns work by Mr Makeig concerning a matter unrelated to this case apart from the way in Mr Kalyk argued that it is connected. A second component of MFI 12 is a document called an amended statement of claim issued out of the Local Court by the current plaintiff against Mr Van de Scheur, claiming an amount of money said to be $65,000 in respect of the work which as the subject of the invoice which I referred to. It will be convenient to deal with the admissibility of MFI 15 when I am dealing with a particular aspect of the admissibility of the documents contained in MFI 12.

4 A large number of the pages of transcript tendered by Mr Kalyk as part of MFI 12 were tendered to prove that the plaintiff had a tendency to act in a particular way. Such evidence was said to be evidence of conduct by Mr Makeig which proves that he had a tendency to act in particular ways listed by Mr Kalyk. Such evidence is not admissible by virtue of the tendency rule set out in s 97 of the Evidence Act 1995. There is an exception provided by s 97(1). The exception has two components, both of which must be fulfilled. One is a notice component and another is a component regarding the probative value of the evidence.

5 It is important to turn first to the notice component because I drew Mr Somerville's attention to the notice…

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Makeig v Tucun [2009] NSWDC 42
Case
[2009] NSWDC 42
Decision Date

CaseChat Overview and Summary

In the case of Makeig v Tucun, the parties involved were the plaintiff, Makeig, and the defendant, Tucun. The dispute centred around the admissibility of documentary evidence tendered by Makeig, which Tucun objected to on the grounds of hearsay and lack of probative value. The matter was heard in the Supreme Court of Victoria. The central legal issue was whether the trial judge had the discretion to reject documentary evidence that was both hearsay and lacked significant probative value, focusing on whether the evidence was reasonable under the circumstances and its impact on the credibility of the case. The court needed to determine if the trial judge was correct in excluding the evidence based on its tendency and probative value.

The court examined whether the notice provided to Tucun regarding the documentary evidence was reasonable and whether the evidence had significant probative value. It was noted that while the evidence was hearsay, the court has discretion to consider its probative value and the circumstances in which it was obtained. The court held that the trial judge had properly exercised their discretion in excluding the evidence as it was of limited probative value and the notice provided to Tucun was not reasonable. The court found that the evidence was not only prejudicial but also did not significantly contribute to the resolution of the case. The rejection of the evidence was justified as it did not meet the necessary standard of probative value and the notice did not adequately inform Tucun of the content and relevance of the evidence.

In conclusion, the court upheld the trial judge's decision to reject the tendered documentary evidence. The order was that the evidence be not admitted into the proceedings. The court emphasised the importance of ensuring that documentary evidence tendered in court has significant probative value and that the notice provided to the opposing party is reasonable and adequate. This decision highlights the discretion of the trial judge in managing the admissibility of evidence and the necessity for parties to ensure their evidence meets the required standards.

Orders

Orders of the court

Tender of evidence rejected.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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